Meta

Archive for May, 2009

President Obama’s desire to appoint judges who have empathy is reminiscent of Ninth Circuit Judge John T. Noonan’s lecture and book, Persons and Masks of the Law. Judge Noonan (then a law professor at Berkeley) presented it as the Holmes Lecture at Harvard Law School in 1972, and then published it as a book in 1976.

In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to allow abstract rules of law to obscure the human beings to whom those rules are applied. “Fascination with rules may mean obeisance to force or the delusion of having mastered force,” he says. “It may also lead to a veritably religious veneration for the rules and their imagined author. The sovereign and his command may be deified.” When that happens, the rules become masks that hide and render irrelevant the humanity of those affected by the law. The effect is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons – conduct that they would otherwise recognize as evil.

Felix S. Cohen explained the limitations of logic and the relevance of morality (or “policy”) in judging:

To the cold eyes of logic the difference between the names of the parties in the two decisions bulks as large as the difference between care and negligence. The question for the judge is: “Granted that there are differences between the cited precedent and the case at bar, and assuming that the decision in the earlier case was a desirable one, is it desirable to attach legal weight to any of the factual differences between the instant case and the earlier case?”

Similarly, former N.Y. Chief Judge Judith Kaye observed: “[T]he danger is not that judges will bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them. . . . [A] far greater danger exists that they do not.”

Mark Harrison and Keith Swisher just published a lengthy (perhaps the lengthiest) article analyzing extrajudicial comments on pending cases. Here is the abstract:

This work explores the ethical boundaries of judges speaking to the media and others concerning their impending or pending cases. We ultimately take a rather dim view of the practice, with particular scrutiny applied to instances in which judges defend or explain their rulings in the press in response to criticism.

The primary problem is that by commenting on the merits of pending cases over which the judge is presiding, she is elevating her personal interests (most commonly, either self-aggrandizement or self-defense) over the interests of the parties or even the more abstract interests of justice. Another problem with these extrajudicial comments in practice is that they result from, or at least are influenced by, ex parte contacts with the media — contacts that are unknown to (or at least practically uncorrectable by) the parties. Furthermore, a regime of extrajudicial speech fails properly to incentivize judges to explain their official actions where it counts, namely, in their rulings and opinions, not to the media or other external outlets. Finally, and perhaps most importantly, because the likelihood of disqualification is so high when a judge extrajudicially comments on anything close to the merits, the outspoken judge regrettably buys herself a one-way ticket off of the case. Therefore, unless the commenting judge has some (better) proof that the comment will benefit (or mitigate a detriment to) some legitimate cause other than herself, she generally should leave the extrajudicial commenting to third parties.

The Honorable Raymond McKoski (Illinois) recently published a thorough examination of charitable fund-raising under the ethical rules, old and new. Here is the abstract:

To promote public confidence in the judicial system, judges are prohibited from engaging in conduct that reflects adversely upon their independence, impartiality, or integrity. Since public trust is damaged by on-bench and off-bench activities, codes of judicial conduct severely restrict a judge’s partisan political activities, private speech, business dealings, social life, religious activities, and charitable endeavors. This Article examines the restrictions placed on a judge’s fund-raising efforts in support of civic, educational, charitable, fraternal, professional, and religious organizations. The Article begins by tracing the evolution of judicial fund-raising regulations through the ABA Model Codes of Judicial Conduct of 1924, 1972, 1990, and 2007. Next, specific fund-raising prohibitions of the 2007 Model Code are evaluated against the rational supporting the state’s right to limit a judge’s extra-judicial activities. The Article concludes that some of the 2007 Code’s fund-raising restrictions are justified because they prevent measurable damage to confidence in the judiciary. Other rules, however, prohibit conduct that is either harmless to, or actually enhances, the image of the judiciary. Those restrictions are not justified and should be eliminated.

Judge McKoski also recently published a thorough exploration of judges’ private use of their official stationery, which likewise traces (among other things) the ABA’s treatment of the subject through the near century’s worth of Model Judicial Codes. Links to both works can be found in Articles.